The bulk of the Equality Act came into force on 1 October 2010. This article summarises the key developments that you need to be aware of. Know How will be exploring the areas below in more detail as the law develops. We will ensure to keep you updated with the case law and when the other provisions of the Act come into force in 2011 and beyond.
9 Protected Characteristics
The Equality Act identifies 9 "protected characteristics"
The new definition of direct discrimination is:
"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others." s13 Equality Act 2010
This does not really change the law as we know it. The key words are "because of" - a Claimant will claim that they have been discriminated against "because of" a protected characteristic. The old law used the phase "on the grounds of". The new phrase is a shorter and simpler way of saying the same thing.
With the exception of age discrimination, direct discrimination can never be objectively justified.
This remains the same as the old law, apart from in the area of disability discrimination. The concept of indirect disability discrimination has never existed - until now. Under the Equality Act, the definition of indirect discrimination has been extended to cover all of the protected characteristics (apart from pregnancy and maternity which is dealt with as indirect sex discrimination)
The concept has been introduced to overrule the House of Lords decision in London Borough of Lewisham v Malcolm (2008) which made disability related discrimination claims almost impossible to bring. This was because the law in Malcolm stated that the comparator for a person claiming disability-related discrimination should be a non-disabled person in the same circumstances. This made a successful disability related claim almost unattainable.
The new concept of indirect disability discrimination does not require a comparator and will potentially make it much easier for claimants to bring disability claims.
The Definition of Disability
The Equality Act does not change the definition of disability and the same statutory definition remains, namely:
"A person (P) has a disability if P has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". s6(1) Equality Act 2010
However, the Act does widen the scope of who could fall within the definition of being disabled as the eight capacities necessary to prove that one has an impairment (e.g. mobility, manual dexterity, speech, hearing, eyesight, etc) have been removed. This appears to broaden the definition but should not make too much difference in practice because previous case law (Hewett v Motorola 2004) has indicated that the list of capacities was open to interpretation.
This is a new and interesting area that is best explained by way of an example. You are an employer and interview a woman for a role. At the interview, you form the opinion that she is a lesbian and decide not to give her the job because you think she will not fit into your company. It turns out that the applicant is not a lesbian. However, she could still bring a claim for discrimination because the employer perceived that she was a lesbian and treated her differently as a result of that perception.
Perceptive discrimination does not apply to the protected characteristics of marriage/civil partnership or pregnancy.
This is a new concept inserted into the Act to codify the existing case law of Coleman v Attridge Law 2009. Associative discrimination occurs where a person is directly discriminated against because they are associated with a person who has a protected characteristic. The most common examples are likely to be where a parent cares for a disabled child or elderly family member.
Victimisation and Harassment
The concept of victimisation is contained in the Equality Act and now applies where a person makes or supports a complaint under the Act. As per the old law, victimisation does not apply where complaints are made falsely or maliciously.
Harassment under the Act is again a very similar concept to the old law but it is extended so that employers are liable for harassment by third parties. For example, if a customer harassed an employee in the course of his employment and the employer was aware of the harassment, but did nothing about it, the employer could be liable.
One interesting new development in the Act is that a new concept of combined discrimination is introduced. This is where a claim can be brought because of a combination of two protected characteristics. For example, in the case of an older female, who feels that she has been discriminated against because of the combination of her sex and age but may not have a strong enough claim to win on the individual grounds of sex or age, under the new law she will be able to bring a claim by combining two protected characteristics. However:
- combined discrimination can only be used for direct discrimination claims;
- it does not apply to the protected characteristics of marriage, civil partnership and pregnancy and maternity;
- combined discrimination will not be brought into force until April 2011; and
- combined discrimination widens the scope of discrimination law and is likely to lead to an increase in claims.
This is the new provision which will probably have the biggest impact on employers. Interview questions relating to the health of an applicant will be illegal, apart from some limited exceptions:
- employers can ask whether the employee requires any reasonable adjustments to be made for the interview;
- questions can be asked about specific functions where they are key to the role - e.g. asking a builder whether he has any trouble lifting heavy items; and
- positive action can be taken in favour of disabled people.
If an employee does feel like they have been discriminated against, then their remedy is not a complaint to the Employment Tribunal but they must contact the Equality and Human Rights Commission. The Commission can intervene and after making enquires, issue a notice of an unlawful act.
It is important to note that job offers can still be conditional upon a medical examination. The key is to ask health questions once an offer has been made, unless being aware of health problems is essential to the role.
Can it ever be lawful to discriminate?
Yes. The main exceptions are where there is a genuine occupational requirement or qualification.
Only time will tell, but the Equality Act should meet its aim of simplifying anti-discrimination law. It is a well drafted piece of legislation that is not expected to make significant changes to existing law but will ensure that more people are protected from being discriminated against.
If require further information visit Employment Solicitors http://www.trethowans.com/
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Our Employment Team is made up of specialist employment solicitors. Headed by Partner Jon Loney, it acts for international, national and major regional employers, as well as senior executives and other workers, on all aspects of employment law.